Kaidah al-Maṣlaḥah al-Mursalah dalam Hukum Islam dan Aktualisasinya terhadap Hak Atas Kekayaan Intelektual

Rule of al-Maṣlaḥah al-Mursalah in Islamic Law and Its Actualization to Intellectual Property Rights

Abstract

This study aims to find out how the rules of al-maṣlaḥah al-mursalah in Islamic law and its actualization to Intellectual Property Rights (IPR). This research is a descriptive qualitative research (non-statistical) using library research methods and normative and philosophical juridical approaches. The results show that al-maṣlaḥah al-mursalah is something that is guarded in religion, where the law is built on it. Al-maṣlaḥah al-mursalah is the basis of justice and truth which is based on 'urf so that it becomes a secondary source of law. Al-maṣlaḥah al-mursalah is considered as a consideration for the humanitarian agenda in law, to maintain five main things; religion, soul, mind, lineage and property. The actualization of the rules of al-maṣlaḥah al-mursalah in IPR is viewed from two sides. First, in terms of ownership, the position is like property, namely property rights. The benefit to him is special which returns to the owner of the thing, then to the publisher. Second, in it there is a general benefit that returns to the whole community in the form of intellectual property benefits that have a major influence in various fields of life.